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In death, Facebook photos could fade away forever

Monday - 3/4/2013, 6:40pm EST

LAUREN GAMBINO
Associated Press

BEAVERTON, Ore. (AP) -- A grieving Oregon mother who battled Facebook for full access to her deceased son's account has been pushing for years for something that would prevent others from losing photos, messages and other memories -- as she did.

"Everybody's going to face this kind of a situation at some point in their lives," says Karen Williams, whose 22-year-old son died in a 2005 motorcycle accident.

The Oregon Legislature responded and took up the cause recently with a proposal that would have made it easier for loved ones to access the "digital assets" of the deceased, only to be turned back by pressure from the tech industry, which argued that both a 1986 federal law and voluntary terms of service agreements prohibit companies from sharing a person's information -- even if such a request were included in a last will and testament.

Lobbyists agree the Stored Communications Act is woefully out of date but say that until it's changed, laws passed at the state level could be unconstitutional.

"Everybody wants to do the right thing, but the hard legal reality is the federal communications act," said Jim Hawley, a vice president at TechNet, an industry group that represents companies such as Google and Microsoft.

Oregon lawmakers moved ahead anyway with a proposal that would have given "digital assets" -- everything from photos and messages stored online to intellectual property and banking information -- the same treatment as material property for estate purposes.

"I think it's time for us to really look at what we can do now," said Democratic Sen. Floyd Prozanski after hearing Williams testify about her loss last month.

Two weeks later, however, language in the bill that would have covered social media accounts, from Facebook to Flikr, was stripped as tech lobbyists said the federal law and company privacy policies trumped anything that the bill would have included.

"I recognize the emotional toll these types of decisions can have on a family who's lost a loved one," Prozanski said Thursday. "But some of these issues may have to be addressed when we have more information than we currently have."

Still, the problem persists and discussions on the issue are gaining momentum. As unlikely as such a case might be, even if a person willingly gives over login and password information to someone whom they authorize to access a given digital account, it would violate most terms of service agreements and both people could be charged with cybercrimes and face civil action from Internet companies under current law.

Currently, five states have digital assets laws, which vary widely. This group includes Oklahoma, which passed a law two years ago allowing estate lawyers to access digital assets, even social media accounts. That measure did not face the opposition that has emerged in Oregon.

"There is some question if laws like the one we passed in Oklahoma, would stand up to a challenge by Facebook and Gmail saying their terms of service agreements supersede laws like this one and the one being discussed in Oregon," said Ryan Kiesel, a former Oklahoma legislator who wrote the law.

"That's a question that remains to be answered," he added.

Several other states, including Nebraska -- guided in part by the story of Williams' 22-year-old son, Loren -- are also considering proposals. And the Uniform Law Commission, a non-profit, non-partisan group that writes model legislation for states to help standardize laws around the nation, is examining the issue.

"This law is a real need as we have moved into a digital world," said Lane Shetterly, an Oregon attorney and a representative on the commission's drafting committee. The group is responsible for standardizing a range of legislation, including commercial transaction regulations and child custody laws.

Proponents say the need is clear. Without clarity or direction, the digital information left behind by a deceased person can spark emotional legal battles, pitting big business against devastated families. And as more and more memories are being stored online, new tools are necessary to make sure loved ones can easily access personal details that could be lost forever.

"If this were a box of letters under his bed, no one would have thought twice," Williams said.

Months after the death of her first-born son, who was away at college in Arizona, Williams found comfort in his Facebook page. There, she was able to click through photos and letters that helped ease the pain of her loss -- for two hours.

She learned of the page from his friends and wanted access to his memories to keep them from being deleted, which was Facebook's policy at the time. Unaware of Internet privacy regulations, she reached out to Facebook for help. As she waited for a response, one of his friends provided a tip that helped her discover his password. "It was like a gift," she said.